Change of the legal classification for an offense which is not described in the indictment. Trial limits

DREPT PENAL ŞI DREPT PROCESUAL PENAL

Abstract

1. In the event that, the evidence produced shows that defendant committed another offense than that for which he or she was sued, the court cannot refer to the remedy set forth in Article 386 of the Code of Criminal Procedure, however, it is bound by the trial limits provided for under Article 371 of the Code of Criminal Procedure, and it shall order the solutions laid down in Article 396 of the Code of Criminal Procedure exclusively in relation to the offense which it was primarily seized with. Moreover, if during the criminal proceedings it was found that the defendant should have been investigated for committing another offense, which, however, was not described in the writ of summons, the procedural remedy consists in the initiation and conduct of the criminal prosecution and bringing before the court, and not in the change of the legal classification. Otherwise, the right to defence would be breached, since the defendant would not be able to defend himself and fully use the guarantees of observing the right to defence provided for by the criminal procedural law. Furthermore, by changing the legal classification into an offense which was not described in the indictment, after reading the writ of summons, the defendant’s right of full acknowledgment of the offenses described in the writ of summons and, thus, of appealing to the simplified procedure with the consequence of reducing the limits of punishment, shall be revoked. 

2. The material effort of the defendant, relied on by the first instance court, is closely related to the payment of the claims to the plaintiff claiming damages by the last hearing date, a circumstance which has already been given legal effectiveness by application of the special legal extenuating circumstance. Moreover, the notion of ”claims of the plaintiff claiming damages”, provided for under Article 10 of Law no. 241/2005, considers the total claims and includes both the main loss, and its accessories (penalties, interests etc. ), so that the splitting of the claims components is not allowed, since, in relation to one or several components thereof, such as default interests and interests, the general legal extenuating circumstance provided for under Article 75 para. (2) letter a of the Criminal Code should be given effectiveness. The efforts made by the defendant to pay the loss by the last hearing date, can only be considered as a constituent element of its action of payment of the claims of the plaintiff claiming damages by this procedural moment, so that they cannot be given a double legal effectiveness from the perspective of application of the extenuating circumstances. If the defendant pays the claims of the claims of the plaintiff claiming damage subsequently to the first hearing date, seeing that, even if the payment thereof has not been made until the regulated procedural time-limit, however, the defendant made efforts to remove the consequences of the offense, the judicial extenuating circumstance provided for under Article 75 para. (2) letter a) of the Criminal Code may be provided with effectiveness, however, as far as the legal extenuating circumstance, which in the case pending before the court is also of special nature has been rendered effective, the same action related to the payment of claims of the plaintiff claiming damage cannot be pursued by applying another extenuating circumstance of general and subsidiary nature.